The respondents are members of a special committee of the Council of the city of New York appointed to investigate the affairs and conduct of the Municipal Civil Service Commission. In the course of committee hearings, the investigation was directed to the personnel at the Information Center and to matters involving the method of selection and the qualifications of certain appointees. The inquiry adduced the fact that prior to the Council's investigation the Mayor had directed a city employee to investigate matters which also related to the personnel at the Information *Page 4 Center and that upon completion of her investigation the employee had made a written report to the Mayor. Thereupon a subpoenaduces tecum was issued by the committee and served upon the Mayor's secretary demanding the production of such report. When compliance with the subpoena was refused and contempt proceedings against the Mayor's secretary were imminent the committee was informed in writing by the corporation counsel that "The Mayor is the person who has the possession, custody and control of such papers." It was in these circumstances, and in a continued effort to secure the written report and related papers which were in the Mayor's possession, that the subpoena duces tecum here in question was served upon the Mayor who promptly applied at Special Term for an order vacating the subpoena. The order of Special Term denying such application has been unanimously affirmed by the Appellate Division. The proceeding is here on appeal by our permission.
Accordingly our inquiry goes to the question whether records in the office of the Mayor of the city of New York, which are concededly pertinent to an official investigation by the Council as to matters relating to the affairs of a city department, are immune from the Council's power of subpoena.
We look first to the city's charter. By section 21 the Council is vested "* * * with the legislative power of the city." By section 43 — which bears the caption "Power of Investigation" — the Council is granted "power from time to time to appoint a special committee to investigate any matters relating to the property, affairs or government of the city or of any county within the city. Any such committee shall have power to requirethe attendance and examine and take the testimony under oath ofsuch persons as it may deem necessary." (Emphasis supplied.)
The power of investigation thus reserved to the Council is broad — indeed, it is broader than the analogous section of the prior charter. (L. 1901, ch. 466, § 54 [Cf. Tanzer "New York City Charter," p. 45].) Neither the Mayor, nor any other city officer is beyond the scope of investigation thus authorized unless some statute or some well-defined principle of law accords to the Mayor the immunity which he now asserts. *Page 5
The Mayor recognizes the broad field of investigation thus opened to the Council by the city's charter. He asserts, however, that section 43 should not be construed so broadly as to destroy what he deems to be the mutual independence of the Mayor and Council. In support of that position the Mayor suggests that rigid independence between the functions of his office and those of the Council is in line with the theory which prompted the framers of the Federal Constitution to treat as separate the three branches of government — executive, legislative and judicial. We are told that the Federal plan, which has as one of its bases the requirement of making the three branches of government co-ordinate and independent, is also fundamental in the design for the government of cities and affords the only basis for decision in this proceeding.
Upon this subject the Supreme Court of the United States has said: "Whether the legislative, executive and judicial powers of a State shall be kept altogether distinct and separate, or whether persons or collections of persons belonging to one department may, in respect to some matters, exert powers which, strictly speaking, pertain to another department of government, is for the determination of the State * * *. `When we speak,' said Story, `of a separation of the three great departments of government, and maintain that that separation is indispensable to public liberty, we are to understand this maxim in a limited sense. It is not meant to affirm that they must be kept wholly and entirely separate and distinct, and have no common link of connection or dependence, the one upon the other, in the slightest degree. The true meaning is, that the whole power of one of these departments should not be exercised by the same hands which possess the whole power of either of the other departments; and that such exercise of the whole would subvert the principles of a free constitution.' (Story's Const. [5th ed.] 393.) Again: `Indeed, there is not a single constitution of any State in the Union, which does not practically embrace some acknowledgment of the maxim, and at the same time some admixture of powers constituting an exception to it.' (Story's Const. [5th ed.] 395.)" (Dreyer v. Illinois, 187 U.S. 71, 84; Williams v. Eggleston, 170 U.S. 304, 310.)
As to the pattern of government adopted by the State of New York, it may be said that the design includes by implication the *Page 6 separation of executive, legislative and judicial powers. But when the State in turn made provision for the government of cities — which this court has defined as "political institutions, erected to be employed in the internal government of the State" (City of New York v. Village of Lawrence, 250 N.Y. 429, 437) — we find many instances, including that of the city of New York, where tripartite, independent branches of government are not prescribed.
The State Constitution provides that "It shall be the duty of the legislature to provide for the organization of cities * * *." (Art. IX, § 9.) In the charter which the Legislature provided for the city of New York (L. 1934, ch. 867 — adopted by referendum November 3, 1936, effective January 1, 1938) it did not see fit to set up tripartite, co-ordinate branches of government which are independent of each other. True, it prescribed that the Mayor shall be "the chief executive officer of the city" (Charter, §§ 3, 4, 5) and that the Council is "the local legislative body of the city." (Id. § 21.) But the fact that functions are exercised by the Mayor and the Council which are independent of each other is not enough, as we conclude, to entitle the Mayor to invoke immunities which he now asserts and which are accorded the executive under the Federal plan of government.
Under charter provisions the Mayor, when sitting as a member of the Board of Estimate, shares many executive responsibilities with the Comptroller, the President of the Council and the Presidents of the five boroughs. (Ch. 3, §§ 61, 62, 70.) As a member of the Board of Estimate he is a member of the Municipal Assembly (L. 1924, ch. 363, § 10; amd. L. 1928, ch. 671) and as such may perform certain legislative functions (Charter, § 39). And although no provision is made for a judicial branch of the city's government, the charter contains the anomalous provision that "The mayor is a magistrate." (Id. § 6.)
It is thus seen that, unlike the office of President under the federal system, the powers of the office of Mayor of the city of New York are not exclusively executive. And unlike the federal system, which recognizes a separation of powers into three independent branches, the chartered plan of government for the city of New York has but two branches — executive and legislative — the functions of which, as defined by the Legislature, are not *Page 7 always independent. This comes about, as we have seen, from the fact that a city is not sovereign, as are the federal government and the states. "A municipal corporation is, so far as its purely municipal relations are concerned, simply an agency of the state for conducting the affairs of government, and as such it is subject to the control of the legislature." (Williams v.Eggleston, supra, p. 310.) "In the absence of express restrictions placed by the Constitution upon the exercise of its legislative powers, the Legislature may create or destroy, enlarge or restrict, combine or divide, municipal corporations." (City of New York v. Village of Lawrence, supra, p. 437.)
It is for that reason that the theory of co-ordinate, independent branches of government has been held generally to apply to the national system and to the states but not to the government of cities. (State ex rel. Wilkinson v. Lane,181 Ala. 646, 658; Uridias v. Morrill, 22 Cal. 474, 478;Kaufman v. City of Tallahassee, 84 Fla. 634, 639; Ford v.Mayor Council of Brunswick, 134 Ga. 820; Sarlls v. State,201 Ind. 88, 115; Eckerson v. City of Des Moines,137 Iowa, 452, 461-466; Bryan v. Voss, 143 Ky. 422, 427; People exrel. Simpson v. City of Mankato, 117 Minn. 458, 467-469;Barnes v. City of Kirksville, 266 Mo. 270, 282; City ofGreenville v. Pridmore, 86 S.C. 442, 443; Walker v. City ofSpokane, 62 Wn. 312, 324, 325.)
The case of Springer v. Philippine Islands (277 U.S. 189), cited by the appellant, is not an authority opposed to our view in the present proceeding. There the controversy involved the validity of a law which purported to restrict the power of the Governor-General who was given "the supreme executive power" by the "Organic Act" — the fundamental law of the Philippine Islands. There an express provision for the separation of powers was held to be contained within the Organic Act. The questions there determined differ widely from the one now before us.
In our consideration of the present problem we must assume that the action of the Special Committee of the Council in issuing thesubpoena duces tecum now challenged, had a legitimate objective. We have treated the committee's power of inquiry, with process to enforce it, as an essential auxiliary to its legislative function. (Wilckens v. Willet, 1 Keyes, 521, 525;People ex rel. McDonald *Page 8 v. Keeler, 99 N.Y. 463, 481, 482, 487; McGrain v.Daugherty, 273 U.S. 135, 174; People ex rel. Karlin v.Culkin, 248 N.Y. 465, 478; Matter of Joint LegislativeCommittee, 285 N.Y. 1, 8.) We cannot say, as does the Mayor, that implicit in those provisions of the charter which prescribe the functions of the Mayor and the Council, is an intention by the Legislature to keep the two in a constant state of isolated independence. The scope of section 43 of the charter, already quoted, is broad. In the absence of some principle of law or some legislative declaration of public policy to the contrary, we regard that section as broad enough to apply to the Mayor of the city. We have seen that the principle of the separation of powers applies only to the sovereign authority — not to the government of cities. Accordingly we may not read into section 43 by implication a right of immunity such as the Mayor now asserts.
The order should be affirmed, without costs.